Jamal Greene on How the World Would Not End if the Supreme Court Did Not Tell Congress What to Do on ACA

Jamal Greene has an insightful essay over at Slate on the Supreme Court’s role in ruling on ACA’s constitutionality. I thought I’d add his essay to the mix for the superb round up of guests my co-blogger Gerard gathered together this week. Here is Professor Greene’s essay:

This week, challengers to the Affordable Care Act are asking the Supreme Court to say that the Constitution does not permit the government to require Americans to purchase health insurance. Lawyers for the government are asking the court to say the opposite. The court should say neither.

What it should say instead is this: “By requiring that Americans purchase health insurance, two coequal branches of government—Congress and the president—have determined that the Constitution permits such a requirement. Because that determination is reasonable, we need not reach an independent judgment on the question. Our inquiry is therefore at an end.” That is, so long as reasonable people can believe that an act of Congress is constitutional, the Supreme Court should generally let the legislation stand.

You’re thinking two things. First, it is naive to think that Congress or the president actually deliberates about whether laws are constitutional. Second, it is downright lunacy to think that the Supreme Court should defer to the self-serving views of politicians on this question. We are, after all, a country of laws and not of men.

Both objections are misplaced. From the early days of the republic, members of Congress and presidents have vigorously debated major pieces of legislation in constitutional terms. The most significant legislative controversy of George Washington’s administration was over whether Congress had the power to incorporate a national bank. Congress had a spirited debate, and, before signing the bank bill into law, President Washington requested detailed legal opinions from Attorney General Edmund Randolph, Secretary of State Thomas Jefferson, and Treasury Secretary Alexander Hamilton. When Andrew Jackson vetoed the reauthorization of the bank in 1832, he did so explicitly because (contrary to Congress and the Supreme Court) he independently judged it unconstitutional.

Opponents of the Civil Rights Act of 1866, including some who supported its ends, believed that Congress did not have the constitutional authority to pass the Act, and urged rejection on those grounds. A century later, those who opposed the Civil Rights Act of 1964 argued that the law exceeded Congress’ power to regulate interstate commerce and that banning racial discrimination by private restaurants and inns infringed on rights of association. By passing the law, Congress rejected those constitutional arguments, relegating them to the fringe.

To be sure, debate over the Affordable Care Act was hardly a model of reasoned deliberation. (Death panels, anyone?) But the very constitutional question being raised before the Supreme Court—that the government may not force people to buy insurance—was raised and debated in Congress. The lawyers David Rivkin and Lee Casey posed the constitutional question in aWashington PostOp-Ed in the midst of the 2009 congressional debate, and both Nancy Pelosi and John Boehner discussed it.

The bigger question is not whether passage of the bill reflects a constitutional judgment—after all, the president and members of Congress take an oath to support the Constitution—but whether judges owe any deference to that judgment. To let Congress judge the constitutionality of federal laws would seem to allow the foxes to guard the henhouse.

We must not forget, though, that striking down congressional statutes carries its own significant cost—these are the laws our democratically elected representatives have passed. And history confirms that when the court overturns national laws, its track record is spotty at best. The court’s invalidation of the Missouri Compromise in the Dred Scott case may have led to the Civil War. Its striking down of federal laws in the first half of the 20th century prevented Congress from regulating child labor and weakened President Roosevelt’s efforts to pull the nation out of the Great Depression. The court’s recent decision in Citizens United permitting unlimited corporate election spending threatens American democracy itself.

It is no answer to point to cases like Brown v. Board of Education or the many other instances in which the court has correctly overturned acts of state legislatures, local officials, or federal prosecutors. The court has an important role to play in ensuring that state and local actors and unaccountable individuals invested with government authority comply with federal law. That role is especially important where rights of minorities are at stake. But this is not true of the Affordable Care Act. And Congress is different, which is why Oliver Wendell Holmes wrote in 1913: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Holmes was right on both scores. Passing a major, controversial piece of national legislation is a heavy lift. It requires the support of 218 members of the House, 60 senators, and the president. It requires committee hearings and grandstanding, takes up hundreds of hours of cable news time and thousands of inches of newspaper columns, engages activists of all stripes, and requires intense negotiation, the expenditure of political capital, and the imperiling of electoral prospects. It should not also require the blessing of Anthony Kennedy.

10 Responses

Judge Posner advocated years ago that the Supreme Court should apply (or at least argued that he would apply if he were on the Court) a “clearly unconstitutional” reversal standard. With respect, I fail to see what is new or insightful about this essay.

Clarity and perspective (in this case, historical) are sufficient justification for the post. It rates high on my novelty scale, too, since it cuts to the chase with brevity. Insight is displayed by Greene’s choice of theme, and his identification of the biggest issue. This reader values apt use of ‘instances’ much as he does the use of epigraphs to introduce a book or chapter…

I agree with Guest that a deferential “reasonableness” standard for assessing the constitutionality of federal legislation is highly problematic. It seems to me that those who support the ACA (I am one of those supporters) are getting carried away in the heat of the moment. A federal ban on abortion or a federal statute banning gay marriage is not outside the realm of possibility. It would be frightening to me if the USSC could deem them “reasonable” and thus constitutional.

The “reasonableness” standard is that when something is reasonably w/i the powers of the federal government, it should be upheld, unless it violates some liberty interest, burdens a minority group in some fashion, threatens republican government itself and things of that sort.

Abortion rights grows out of various express and implicit liberties in the Constitution as do equal protection of same sex couples and so forth. OTOH, unless we are making some sort of substantive due process argument here, the PPACA is a reasonable application of the commerce and tax power & does not violate the above criteria.

If mere “reasonableness” review of EVERYTHING is the rule, yes, I would firmly oppose that, but it’s hard to believe that is what is set forth.

Professor Greene carefully notes:
“It is no answer to point to cases like Brown v. Board of Education or the many other instances in which the court has correctly overturned acts of state legislatures, local officials, or federal prosecutors. The court has an important role to play in ensuring that state and local actors and unaccountable individuals invested with government authority comply with federal law. That role is especially important where rights of minorities are at stake. But this is not true of the Affordable Care Act. And Congress is different, which is why Oliver Wendell Holmes wrote in 1913: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

Fancy that; Somebody who was nominated and confirmed by federal officeholders thought that it was his job to enforce the Constitution against state office holders, but that federal office holders should be free to violate it without judicial interference.

You’d almost think this was the sort of Justice a President and Senate would pick, if they found being bound by a Constitution a tad confining…

Many “reasonable” people (including several current USSC justices!) believe that the right to choose abortion is not a fundamental right protected by the US Constitution. The same can be said for the rights of same-sex couples. A federal statute banning abortion or same-sex marriage could easily pass muster under a deferential “reasonableness” standard.

I also am having a hard time understanding why individuals necessarily require more protection from government interference at the state level than at the federal level. Certainly that was the case during the civil rights movement with respect to Jim Crow laws, etc., but why assume that is going to be the case across-the-board?

I disagree. Because of the much greater resources and much larger territory over which it has control, the federal congress doing something wrong can do a lot more harm than the states. At least there is a meaningful possibility of exit from the states. Furthermore, your vote for federal officials is in general much more diluted than your vote for state or local officials. That means federal officials are less politically accountable.

So of course, the United States would not come to an end just because acts of Congress could not be declared unconstitutional. But the United States as a constitutional democracy would come to an end when federal power stopped being restricted by courts and the constitution. I come from a country where for a very long time there was very limited ability to challenge the constitutionality of acts of parliament. Unpopular minorities have been persecuted (never explicitly mind you) and many fundamental freedoms such as freedom of speech have been severely restricted.

What’s the standard that you are using to determine that the Court made bad calls? Sure, we all agree on Dredd Scott. (Though if it did precipitate the Civil War which precipitated emancipation, that’s not such a terrible thing) But I don’t cry over the New Deal policies, many of which were design to restrict output with the predictable result (go ask Krugman what he thinks of production quotas) of harming recovery. Similarly, Citizens United sounds like a great win for individual freedom. Perhaps I am wrong, but your analysis looks a lot like: “Court sides with liberal policy = good. Court sides against liberal policy = bad.”

“Holmes was right on both scores. Passing a major, controversial piece of national legislation is a heavy lift. It requires the support of 218 members of the House, 60 senators, and the president.”

This country is home to 300 million people. The fact that 279 people can make the rules for 300 million people is a very scary thought and throwing a couple road blocks in their way always sounds like a good idea.

I think I understand his point, however, there is one key premise that, if proven false or even grossly inaccurate, probably undermines (or at least weakens) his theoretical argument. That is, the notion that the Court should be deferential to “reasonable” legislation signed by the President is conditioned upon the idea that (1) there has been vigorous debate within the Congress with respect to the proposed legislation and (2) those congresspersons reflect the interests of their constituents. Clearly (1) is usually false as evidenced by the fact that most bills are passed without actually being read by most in Congress (hell, often not even by the “drafters” when the bills come pre-packaged from outside sources like ALEC). Re: (2), unless individual constituents no longer matter, or are insignificant when juxtaposed to corporate interests and other deep-pocketed lobbyists, (2) is a fallacy as well (e.g., Dodd-Frank. Patriot Act).